Case Detail

FOIA Project Annotation: A federal court in Florida has ruled that Spivey Utility Construction Company is not entitled to attorney's fees for its FOIA suit against OSHA for copies of the testimony of supervisory-level employees during an OSHA investigation of work-related death. As a result of the work-related death, OSHA began an investigation that included interviews of supervisory employees. Spivey made several informal requests for the interviews but because the investigation was still ongoing, the agency did not respond. Spivey then made a formal FOIA request, which OSHA denied under Exemption 7(A) (ongoing investigation or proceeding). After a negotiated settlement of Spivey's liability, the agency disclosed the interviews. Spivey then filed for attorney's fees, arguing its FOIA litigation caused the agency to disclose the records. The federal court magistrate, siding with OSHA, rejected Spivey's claim that its FOIA litigation caused the disclosure of the interviews. Instead, the magistrate judge pointed out that "initiating the instant FOIA litigation while the enforcement proceedings continued was superfluous, at best, and did not substitute itself for discovery in the enforcement proceedings." Addressing Spivey's entitlement arguments, the magistrate judge rejected Spivey's contention that disclosure was in the public interest, pointing out that "Spivey's interest in the statement solely and distinctly benefits Spivey in defending itself in the enforcement proceedings. In seeking such information, Spivey sought to limit its liability and to reduce the fines assessed against it by OSHA, which it eventually succeeded in doing." The magistrate judge also agreed that OSHA had a reasonable basis for withholding the records originally. The magistrate judge noted that "given the potential issues at stake, OSHA properly withheld the documents under Exemption 7(A) and provided 'a reasonable basis in law' for its actions. Nothing in the record indicates that OSHA was recalcitrant in its opposition to Spivey or otherwise engaged in obdurate behavior, and, thus, this factor likewise weighs against an award of attorneys' fees and costs."
Issues: Litigation - Attorney's fees - Eligibility, Litigation - Attorney's fees - Entitlement - Commercial interest

Date Filed	Doc #	Docket Text
2016-11-07	1	COMPLAINT against Occupational Safety and Health Administration (Filing fee $ 400.00 receipt number TPA-040082) filed by Spivey Utility Construction Company. (Attachments: # 1 Civil Cover Sheet)(AMD) (Entered: 11/08/2016)
2016-11-07	2	SUMMONS issued as to Occupational Safety and Health Administration. (AMD) (Entered: 11/08/2016)
2016-11-11	3	RELATED CASE ORDER AND NOTICE of designation under Local Rule 3.05 - Track 2. Notice of pendency of other actions due by 11/25/2016. Signed by Judge Charlene Edwards Honeywell on 11/11/2016. (WMD) (Entered: 11/11/2016)
2016-11-11	4	INTERESTED PERSONS ORDER Certificate of interested persons and corporate disclosure statement due by 11/25/2016. Signed by Judge Charlene Edwards Honeywell on 11/11/2016. (WMD) (Entered: 11/11/2016)
2016-11-22	5	***TERMED - incorrect event. Re-file document using event 'SUMMONS RETURNED EXECUTED AS TO USA'.*** RETURN of service executed on 11/08/2016 by Spivey Utility Construction Company as to Occupational Safety and Health Administration. (Cotney, Trenton) Modified on 11/22/2016 (AMD). (Entered: 11/22/2016)
2016-11-23	6	SUMMONS returned executed by Spivey Utility Construction Company. Occupational Safety and Health Administration served on 11/8/2016, answer due 1/9/2017. (Cotney, Trenton) (Entered: 11/23/2016)
2016-11-23	7	CERTIFICATE of interested persons and corporate disclosure statement re 4 Interested persons order by Spivey Utility Construction Company. (Cotney, Trenton) (Entered: 11/23/2016)
2016-11-23	8	NOTICE of pendency of related cases re 3 Related case order and track 2 notice per Local Rule 1.04(d) by Spivey Utility Construction Company. Related case(s): yes (Cotney, Trenton) (Entered: 11/23/2016)
2016-12-07	9	ANSWER to 1 Complaint by Occupational Safety and Health Administration.(Stegeby, Erik) (Entered: 12/07/2016)
2016-12-20	10	NOTICE of pendency of related cases per Local Rule 1.04(d) by Occupational Safety and Health Administration. Related case(s): No (Stegeby, Erik) (Entered: 12/20/2016)
2016-12-27	11	CERTIFICATE of interested persons and corporate disclosure statement by Occupational Safety and Health Administration. (Stegeby, Erik) (Entered: 12/27/2016)
2016-12-30	12	CASE MANAGEMENT REPORT. (Stegeby, Erik) (Entered: 12/30/2016)
2017-01-13	13	CASE MANAGEMENT AND SCHEDULING ORDER: Discovery due by 1/5/2018, Dispositive motions due by 2/2/2018, Pretrial statement due by 5/22/2018, All other motions due by 5/29/2018, Final Pretrial Conference set for 6/19/2018 at 1:30 PM in Tampa Courtroom 13 A before Judge Charlene Edwards Honeywell, Bench Trial set for term commencing 7/2/2018 in Tampa Courtroom 13 A before Judge Charlene Edwards Honeywell. Conduct mediation hearing by 1/26/2018. Lead counsel to coordinate dates. Signed by Judge Charlene Edwards Honeywell on 1/13/2017. (BGS) (Entered: 01/13/2017)
2017-08-28	14	Notice of substitution of AUSA. Lacy R. Harwell, Jr substituting for E. Kenneth Stegeby. (Harwell, Lacy) (Entered: 08/28/2017)
2017-09-12	15	MOTION for Attorney Fees and Costs by Spivey Utility Construction Company. (Cotney, Trenton) Motions referred to Magistrate Judge Anthony E. Porcelli. (Entered: 09/12/2017)
2017-09-13	16	ENDORSED ORDER denying without prejudice for failure to comply with Local Rule 3.01(g) 15 Motion for Attorney Fees. The parties shall confer, either in person or telephonically, to address the issues raised in the motion. Signed by Magistrate Judge Anthony E. Porcelli on 9/13/2017. (JMF) (Entered: 09/13/2017)
2017-09-19	17	Amended MOTION for Attorney Fees 16 Order on Motion for Attorney Fees by Spivey Utility Construction Company. (Cotney, Trenton) Modified event type and text on 9/20/2017 (CTR). (Entered: 09/19/2017)
2017-09-21	18	Unopposed MOTION for Extension of Time to File Response/Reply as to 17 MOTION for Attorney Fees by Occupational Safety and Health Administration. (Harwell, Lacy) Motions referred to Magistrate Judge Anthony E. Porcelli. (Entered: 09/21/2017)
2017-09-21	19	ENDORSED ORDER granting 18 Motion for Extension of Time to File Response/Reply re 17 MOTION for Attorney Fees. Responses due on or before 10/17/2017. Signed by Magistrate Judge Anthony E. Porcelli on 9/21/2017. (JMF) (Entered: 09/21/2017)
2017-10-17	20	RESPONSE in Opposition re 17 MOTION for Attorney Fees filed by Occupational Safety and Health Administration. (Attachments: # 1 Exhibit A Document request, # 2 Exhibit B Stipulation)(Harwell, Lacy) (Entered: 10/17/2017)
2017-10-17	21	DECLARATION of Dane Steffenson re 20 Response in Opposition to Motion by Occupational Safety and Health Administration. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H)(Harwell, Lacy) (Entered: 10/17/2017)
2017-10-17	22	DECLARATION of Joseph Plick re 20 Response in Opposition to Motion by Occupational Safety and Health Administration. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E)(Harwell, Lacy) (Entered: 10/17/2017)
2017-10-20	23	Unopposed MOTION for leave to file Reply by Spivey Utility Construction Company. (Cotney, Trenton) (Entered: 10/20/2017)
2017-11-03	24	ENDORSED ORDER granting 23 Motion for Leave to File. Plaintiff shall have seven (7) days from the date of this Order to file a reply brief, not to exceed ten (10) pages in length. Signed by Magistrate Judge Anthony E. Porcelli on 11/3/2017. (JMF) (Entered: 11/03/2017)
2017-11-13	25	REPLY to Response to Motion re 17 MOTION for Attorney Fees filed by Spivey Utility Construction Company. (Cotney, Trenton) (Entered: 11/13/2017)
2017-12-05	26	NOTICE of hearing on motion re 17 MOTION for Attorney Fees. Motion Hearing set for 12/18/2017 at 02:00 PM in Tampa Courtroom 10 A before Magistrate Judge Anthony E. Porcelli. (JMF) (Entered: 12/05/2017)
2017-12-06	27	Consent MOTION to Continue Oral Argument by Occupational Safety and Health Administration. (Harwell, Lacy) (Entered: 12/06/2017)
2017-12-07	28	ENDORSED ORDER granting 27 Motion to Continue. The hearing will be rescheduled by separate Notice. Signed by Magistrate Judge Anthony E. Porcelli on 12/7/2017. (JMF) (Entered: 12/07/2017)
2017-12-07	29	NOTICE OF RESCHEDULING HEARING: The Motion Hearing previously scheduled for 12/18/2017 is rescheduled. New scheduling date and time: Motion Hearing set for 1/9/2018 at 11:00 AM in Tampa Courtroom 10 A before Magistrate Judge Anthony E. Porcelli. (JMF) (Entered: 12/07/2017)
2018-01-03	30	NOTICE of Appearance by Marci E. Britt on behalf of Spivey Utility Construction Company (Britt, Marci) (Entered: 01/03/2018)
2018-01-04	31	Notice of substitution of AUSA. Erik Kenneth Stegeby substituting for Lacy R. Harwell, Jr.. (Stegeby, Erik) (Entered: 01/04/2018)
2018-01-09	32	Minute Entry. Proceedings held before Magistrate Judge Anthony E. Porcelli: MOTION HEARING held on 1/9/2018 re 17 MOTION for Attorney Fees filed by Spivey Utility Construction Company. (digital) (LV) (Entered: 01/09/2018)
2018-01-25	33	NOTICE of hearing: Telephone Conference set for 1/30/2018 at 03:00 PM in Tampa Courtroom 10 A before Magistrate Judge Anthony E. Porcelli. The parties shall appear telephonically at the hearing by calling toll-free number 1-888-684-8852 on the day of the hearing and entering access code 8895301 followed by security code 0130 when prompted.(JMF) (Entered: 01/25/2018)
2018-01-30	34	Minute Entry. Proceedings held before Magistrate Judge Anthony E. Porcelli: TELEPHONE CONFERENCE held on 1/30/2018. (digital) (LV) (Entered: 01/30/2018)
2018-02-06	35	NOTICE by Spivey Utility Construction Company of Supplemental Filing (Attachments: # 1 Exhibit Exhibit A, # 2 Exhibit Exhibit B, # 3 Exhibit Exhibit C, # 4 Exhibit Composite Exhibit D, # 5 Exhibit Exhibit E, # 6 Exhibit Exhibit F)(Batcher, Virgil) (Entered: 02/06/2018)
2018-02-14	36	ORDER: The parties shall advise the Court within SEVEN (7) DAYS of the date of this Order as to the status of the mediation. Signed by Judge Charlene Edwards Honeywell on 2/14/2018. (BGS) (Entered: 02/14/2018)
2018-02-21	37	STATUS report Joint Report Regarding the Status of Mediation by Spivey Utility Construction Company. (Batcher, Virgil) (Entered: 02/21/2018)
2018-05-22	38	ORDER: The Final Pre-Trial Conference scheduled for June 19, 2018 is hereby cancelled, as the parties have advised the Court that all issues have been resolved, except for the issue of attorneys' fees. The issue of attorneys' fees is pending before the magistrate judge. Signed by Judge Charlene Edwards Honeywell on 5/22/2018. (BGS) (Entered: 05/22/2018)
2018-05-22	39	NOTICE canceling Final Pretrial Conference scheduled for June 19, 2018 and Jury trial set for term commencing July 1, 2018. (BGS) (Entered: 05/22/2018)
2018-08-14	40	REPORT AND RECOMMENDATIONS re 17 MOTION for Attorney Fees filed by Spivey Utility Construction Company. Signed by Magistrate Judge Anthony E. Porcelli on 8/14/2018. (JMF) (Entered: 08/14/2018)
2018-09-04	41	ORDER: (1) The Report and Recommendation of the Magistrate Judge 40 is adopted, confirmed, and approved in all respects and is made a part of this Order for all purposes, including appellate review. (2) Plaintiff Spivey Utility Construction Company's Amended Motion for Attorneys' Fees and Costs 17 is DENIED. (3) As all issues in this case, including the underlying dispute between the parties, have been resolved, the parties are directed to file a stipulation of dismissal of this case on or before September 18, 2018. Signed by Judge Charlene Edwards Honeywell on 9/4/2018. (BGS) (Entered: 09/04/2018)
2018-09-19	42	STIPULATION of Dismissal with prejudice by Spivey Utility Construction Company. (Batcher, Virgil) (Entered: 09/19/2018)
2018-09-19	43	ORDER dismissing case, with prejudice. Each party shall bear its own costs and attorneys' fees. The Clerk is directed to terminate any pending motions and deadlines and CLOSE this case. Signed by Judge Charlene Edwards Honeywell on 9/19/2018. (BGS) (Entered: 09/19/2018)
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